Effect given to the recommendations of the committee and the Governing Body - Report No 376, October 2015

Effect given to the recommendations of the Committee and the Governing Body

1. 146. The Committee last examined this case at its June 2014 meeting [see 372nd Report, paras 619–651], when it welcomed the agreement reached by the bipartite commission composed of representatives of Hava-İş and Turkish Airlines (THY) on 19 December 2013 for the reinstatement of the vast majority of dismissed workers, and requested the Government to make every effort to ensure, if this is not already the case, that the dismissed workers be swiftly and effectively reinstated in their jobs under the terms and conditions prevailing prior to their dismissal with compensation for lost wages and benefits. The Committee also requested the Government to review, together with the social partners, section 58(2) of Act No. 6356 and article 54(1) of the Turkish Constitution, so as to ensure that lawful industrial action is no longer limited to strikes linked to a dispute during the collective bargaining process. In view of the alleged excessiveness of fines provided for in section 78(1) of Act No. 6356, the Committee requested the Government to consider reviewing the system of fines in line with its conclusions, in consultation with the social partners. As regards the allegations of excessive police presence during the strike called by Hava-İş on 15 May 2013, the Committee deeply regretted that the Government had not submitted any response and urged it to provide observations without delay. With regard to the alleged recourse to use of labour drawn from outside the undertaking to replace the strikers, the Committee requested the Government to provide a copy of the decision of the Appeal Court, together with information on the reasons given for reversing the ruling of the Istanbul Labour Court.
2. 147. In a communication dated 15 September 2014, the International Transport Workers’ Federation (ITF), one of the two complainant organizations, indicated that as of 15 September 2015, 322 dismissed workers were reinstated in their original jobs, but with loss of seniority and no back pay. The ITF also states that the THY refused to reinstate 25 workers, claiming that their dismissals were grounded on disciplinary offences and bore no relation with the protest action. The ITF indicates that Hava-İş, the other complainant organization, contests this claim of the employer and continues to call for the reinstatement of these 25 workers. The ITF informs the Committee that five dismissed workers chose not to return to the THY following agreement for their reinstatement. The ITF adds that the Turkish Government has so far not taken any steps to revise Act No. 6356 in accordance with the recommendations of the Committee.
3. 148. In a communication dated 30 January 2015, the Government, responding to the communication of the ITF, reiterates that a commission of six, in which the THY and Hava-İş each had three representatives, looked into the cases of 305 dismissed workers and decided to reinstate 256. Later the commission also reinstated 33 union members out of 39 working in Technical Co. at the time of the collective negotiations. The Government also reiterates that the parties reached an agreement that some of the union members could not be reinstated due to their disciplinary action. The Government states that the Ministry of Labour and Social Security (MoLSS) is assessing claims of severance loss presented by reinstated workers, that the MoLSS is opening negotiation channels, uses tripartite dialogue mechanisms and plays an active role in the resolution of the conflict. With regard to the reviewing of section 58(2) of Act No. 6356 and article 54(1) of the Constitution, the Government reiterates that the subsection of article 54(1) of the Constitution that contained a prohibition on politically motivated strikes has been repealed and that Act No. 6356 does not contain such prohibition either. The Government further emphasizes that in the preparation of Act No. 6356, social dialogue mechanisms have been used effectively in accordance with ILO Convention No. 144, and as a result of this dialogue all provisions in previous laws allowing for imprisonment sanctions were revoked and replaced by provisions imposing administrative fines.
4. 149. The Committee welcomes the effective reinstatement of the great majority of dismissed workers. However, it notes with concern the information provided by the ITF according to which 322 reinstated workers have lost seniority and back pay. The Committee notes with interest the observations of the Government on the role of the MoLSS in assessing and channelling the severance loss claims of the reinstated workers, and recalls that in this case and many other cases of dismissal of trade unionists on the grounds of their trade union membership and activities, the Committee has requested the Government to ensure that the persons in question are reinstated in their jobs without loss of pay [see 372nd Report, Case No. 3011, paras 647 and 651(a)]. The Committee once again requests the Government to ensure that the reinstated workers have effectively regained their jobs under the same terms and conditions prevailing prior to their dismissals, with compensation for lost wages and benefits and to keep it informed of the progress made in this regard.
5. 150. With regard to the workers who were not reinstated on the grounds that their dismissals were for disciplinary reasons unrelated to the protest action, the Committee notes a divergence between indications provided by the complainant organization and the Government: the complainant maintains that Hava-İş rejects the view that these dismissals were unrelated to the trade union activities of the workers concerned (who according to the ITF are 25) and calls for their reinstatement, while the Government maintains that an agreement was reached between the company and the union that some of the workers could not be reinstated due to their disciplinary action. The Committee requests the Government to carry out independent investigations to determine the grounds for the 25 dismissals in question and, if it finds that they constitute anti-trade union acts, to take measures to ensure the reinstatement of the workers concerned and to keep it informed of the measures taken.
6. 151. With regard to its request that section 58(2) of Act No. 6356 and article 54(1) of the Constitution be reviewed so as to ensure that lawful industrial action is no longer limited to strikes linked to a dispute during the collective bargaining process, the Committee notes that the Government reiterates that the constitutional and legal prohibitions of politically motivated strikes, solidarity strikes and general strikes have been repealed and Act No. 6356 does not replicate them. The Committee understands that the said provisions do not expressly prohibit other types of industrial action. However, it notes that they do restrict lawful strikes to disputes during collective bargaining negotiations. The Committee is bound to note that such a restriction cannot but affect the exercise of the right to strike in a broader context. Recalling that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement and that workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 531], the Committee once again requests the Government to, in consultation with the social partners, review the provisions in question in order to bring them into conformity with the principles of freedom of association.